P. v. Chui

Filed 11/30/05 P. v. Chui CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ROGERS YUILUN CHUI, Defendant and Appellant.

B178042 (Los Angeles County Super. Ct. No. KA065427)

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Rogers Yuilin Chui appeals from a judgment of conviction entered after a jury found him guilty of hit and run resulting in death (Veh. Code, § 20001, subd. (b)(2)). The trial court sentenced defendant to state prison for three years. It imposed restitution fines (Pen. Code, §§ 1202.4, subd. (b), 1202.45) and ordered that defendant pay restitution to the victim’s family if they obtain a civil judgment against him.

On appeal, defendant contends the trial court erred in excluding his videotaped evidence, in instructing the jury on efforts to suppress evidence, in ordering civil restitution and in denying him probation. We disagree and affirm the judgment.

FACTS

Between 6:00 and 6:30 a.m. on October 15, 2003, defendant struck 16-year-old Sara Dich (Dich) with his van as she was walking across South Stimson Avenue in Hacienda Heights on her way to school. Defendant did not stop. Dich died as a result of her injuries.

Patrick McClean (McClean) was watering the lawn of his home on Lujon Street, about 200 feet from the intersection with South Stimson Avenue. Although it was “darkish” out, McClean was able to see. He saw Dich walking east toward South Stimson Avenue. Dich was wearing dark clothes. McClean saw Dich cross Lujon Street. Shortly thereafter, he heard a thump from the intersection of Lujon Street and South Stimson Avenue. He turned and saw a large tractor-trailer driving south on South Stimson Avenue. He assumed the truck had made the noise.

Annam Alexander (Alexander), a security guard on his way home from work, was driving east on Halliburton Road, which intersects South Stimson Avenue south of Lujon Street. Inasmuch as it was slightly dark and slightly foggy, his view of the road was sometimes hazy. As he was waiting to turn left onto South Stimson Avenue, he saw a red van driving west on Halliburton Road. The van turned right on South Stimson Avenue into the lane closest to the center of the street. Alexander turned left on South Stimson Avenue into the right-hand lane and was driving three to four car lengths behind the red van.

As Alexander approached Lujon Street, he saw “kind of a white shadow crossing the road going diagonally.” He thought it was a person. The red van hit the “white shadow,” which went up in the air and then fell to the ground. The van continued driving. Alexander turned on his high beams and honked his horn several times. The van sped up and drove away.

Alexander stopped and directed traffic around the area. McClean saw the stopped car and other activity in the area and came over to investigate. He saw Dich lying in the center of the street, her books and shoes and pieces of debris strewn in the street. He attempted to take her pulse and found her cold and unresponsive. She died of multiple traumatic injuries.

California Highway Patrol Officer Tannon Brown arrived at the scene shortly after 7:00 a.m. He retrieved a number of pieces of debris, including a plastic housing from a left side mirror and pieces of amber plastic. One of the pieces he retrieved had a serial number on it. From this, he was able to determine that it came from a GMC Safari or a Chevrolet Astrovan. He gave this information to Dich’s family. Dich’s family put this information on signs and banners that they posted in the area.

About noon that same day, defendant brought his red Chevrolet Astrovan to a body shop in Monterey Park. Defendant’s friend, Sun Man, worked at the body shop, which was owned by his son, Kun Man. The van’s left front fender was dented, and its left side mirror housing was broken. Defendant asked Sun Man to repair the damage. He did not explain specifically what had happened, only that he had hit something.

Kun Man obtained a used fender for the van and attempted to have it painted to match the van. There was a noticeable difference in color, however. Sun Man suggested to defendant that he have the entire van painted so that the color would match. Defendant said he did not care if the color matched.

While the van was in the body shop, Kun Man noticed the signs Dich’s family had put up in the area. They described a van like defendant’s with damage similar to that on defendant’s van. Kun Man told his father he wanted to call the police. Sun Man did not want him to do so. On October 19, Sun Man telephoned defendant and told him that Kun Man suspected he had been involved in the accident and wanted to call the police. Sun Man asked whether he was involved. Defendant said he did not know; he knew he had hit something, but he did not know whether it was a person. Later that evening, defendant and Attorney Daniel Deng went to the body shop and took pictures of the van.

On October 20, Kun Man telephoned Officer Brown and told him about defendant’s van. Officer Brown went to the body shop, where Kun Man gave him the fender, the left light housing and remaining portion of the left side mirror from the van. Sun Man gave Officer Brown Attorney Deng’s business card. Officer Brown had the van itself, which had been repaired, impounded. Before Officer Brown left the body shop, Attorney Deng telephoned and spoke to him.

Officer Brown compared the pieces of amber plastic found at the crime scene to the left light housing from the van. The pieces fit exactly.

Late in the afternoon on October 20, defendant and his attorney met with Officer Brown at the Santa Fe Springs California Highway Patrol office. Defendant said that he was driving to work on the morning of October 15, leaving home shortly after 6:00 a.m. It was dark outside. He remembered hearing a noise near the intersection of South Stimson Avenue and Lujon Street, but his van was noisy. He did not know whether he had hit anything and did not feel an impact. He did not notice anyone flashing lights or honking a horn at him. When he arrived at work several minutes later, he noticed damage to his van—the fender was dented, the turn signal light was broken and the left side mirror was missing. After lunch that day, he took his van to be repaired. Defendant told Officer Brown he was sorry for Dich’s family’s loss.

Defense

Mortimer N. Moore (Moore), a professor emeritus of physics at California State University at Northridge, specializes in forensic physics and is an expert in accident reconstruction. He examined the crime scene and defendant’s van.

It was Moore’s opinion that Dich “clipped” the side of defendant’s van. She slid along the side of the van until she hit the left side mirror. Her fatal injuries occurred when she flew into the air and then hit the pavement.

Moore believed that while the intersection of South Stimson Avenue and Lujan Street was well lit, the accident occurred north of there, where the light was too dim to allow a driver to see someone in the street. Alexander was able to see Dich’s silhouette when she was backlit by the tractor-trailer driving south on South Stimson Avenue. Defendant, in the lane closest to the center of the street, likely would have averted his eyes to avoid being blinded by the tractor-trailer’s headlights and thus would not have seen Dich’s silhouette. The darkness of the area also would explain why defendant did not notice that his left side mirror was missing.

Moore also opined that defendant might not have felt any impact from hitting Dich due to the disparity in weight between his van and Dich. He would have heard a noise, but it would not have enabled him to tell that he had hit a person.

On October 15, 2003, sunrise was at 6:57 a.m. From the 911 calls made, it appeared that the accident occurred about 6:25 a.m., shortly before the sky began to lighten at 6:32 a.m. It would have been very dark at that time, and visibility could have been affected by fog as well.

DISCUSSION

Exclusion of Videotaped Evidence

Defendant sought to introduce a videotape of the accident scene demonstrating “what the lighting does with respect to what people can see from different positions, and it was taken about 8:00 o’clock at night. [¶] [Moore] would testify as to why there’s no difference between 8:00 o’clock at night and 6:30 in the morning based on all of the evidence that he reviewed, including the police report and the fact that it was overcast at the time.” Moore also would testify that “the camera that was used errs on the side of conservatism because this particular camera actually sees better at night than the human eye. So it’s a conservative demonstration to explain how it is that [defendant] would not have seen the victim and yet a person 60 to 100 feet behind him would have been able to see her, meaning Alexander.”

The prosecutor objected under Evidence Code section 352 and on relevancy grounds. He explained that the conditions on the videotape were not the same as the conditions at the time of the accident, making the videotape irrelevant, confusing and unduly prejudicial. Specifically, the camera was shaky, giving a different view than a person would have had. The camera detected things differently than the human eye; it had glare and stars caused by lights, which obstructed the view and which would not have been seen by the human eye. The videotape was shot from a vehicle driving in the right hand lane, while defendant had been driving in the lane closest to the center of the road; the difference in position could have affected the illumination on the pedestrian. Additionally, the videotape had subtitles, such as “See if you can find the pedestrian.” These were confusing and prejudicial as well.

Defense counsel responded that the videotape was not intended to recreate the conditions at the time of the accident but merely to demonstrate the effects of the backlighting. He argued that the shakiness of the camera was not significant, the videotape was shot from the right hand lane to demonstrate why Alexander could see the victim, and the subtitles were not intended to be frivolous but to indicate what the defense wanted to show.

The trial court found the subtitles to be argumentative, but if that were the only problem with the videotape, it would not preclude the tape’s admission. The court also found a problem in the shakiness of the camera, which made it difficult to focus on the details in the videotape. Additionally, filming from the right hand lane provided a view of the scene from the wrong angle, and there was a “gross distortion of all the lights shown on the video, which greatly interferes with one’s ability to see the items that it’s being offered to show.” As a whole, the court found, the videotape was argumentative and misleading. It therefore sustained the People’s objection under Evidence Code section 352.

Evidence Code section 352 gives the trial court the discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) We will not disturb the trial court’s exercise of its discretion on appeal unless the court has abused its discretion (People v. Minifie (1996) 13 Cal. 4th 1055, 1070), i.e., if its decision exceeds the bounds of reason (DeSantis, supra, at p. 1226).

It is true a defendant has the right to have the trier of fact consider pertinent evidence in his behalf. A defendant’s rights to a fair trial and to present all relevant evidence of significant probative value to his defense take precedence over Evidence Code section 352 considerations. (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) This does not mean, however, that these rights will preclude the trial court from using Evidence Code section 352 to exclude evidence of limited probative value. (People v. Milner (1988) 45 Cal.3d 227, 240, fn. 11; Reeder, supra, at p. 553.)

Here, the trial court found the conditions depicted in the videotape were dissimilar enough from the conditions at the time of the accident to run the risk of confusing the issues or misleading the jury. The dissimilarities also decreased the relevance of the videotape. Under these circumstances, the trial court did not abuse its discretion in excluding the videotape under Evidence Code section 352. (People v. Boyd (1990) 222 Cal.App.3d 541, 565-566.)

CALJIC No. 2.06

Over defense objection, the trial court instructed the jury pursuant to CALJIC No. 2.06: “If you find that a defendant attempted to suppress evidence against himself in any manner, such as by destroying evidence or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

The trial court has the duty to instruct the jury as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Saddler (1979) 24 Cal.3d 671, 681.) Conversely, it is error to instruct the jury on principles of law inapplicable to the case. (Saddler, supra, at p. 681; People v. Rollo (1977) 20 Cal.3d 109, 122-123.) The trial court should give an instruction where there is substantial evidence to support it. (People v. Breverman (1998) 19 Cal.4th 142, 157.)

Defendant argues there is no substantial evidence to support a finding that he attempted to suppress evidence against himself, in that (1) “even though [he] took the van to the body shop to be repaired, the fact that the paint on the fender did not match the rest of the van showed that [defendant] was not attempting to hide the fact that the van was repaired, and (2) in deciding to give CALJIC No. 2.06, the trial court “prejudicially presumed that in the normal course of body shop activities items that are taken off of a vehicle are normally thrown away.”

The evidence showed that the day of the accident, defendant took the van to the body shop to have the damage to it repaired. It reasonably is inferable from the evidence that defendant was attempting to conceal evidence that the van was involved in the accident. The trial court thus properly instructed the jury pursuant to CALJIC No. 2.06.

That defendant was willing to have a fender that was a different color from the rest of the van was a fact the jury could consider in determining whether he was attempting to conceal evidence. So long as there was evidence in the record from which the jury could find an attempt to conceal evidence, instruction with CALJIC No. 2.06 was proper. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.)

Even if the trial court erroneously assumed that the old fender would be thrown away, a finding of an attempt to conceal evidence is not dependent upon the damaged van parts being thrown away. Merely repairing the van would conceal the evidence of its involvement in the accident, in that the damage to the fender and the broken mirror no longer would be visible to an observer.

Civil Restitution

The trial court ordered that defendant pay restitution to Dich’s family pursuant to any civil judgment in their favor. As a general rule, a criminal court cannot order restitution based on civil liability. (People v. Richards (1976) 17 Cal.3d 614, 620-621, disapproved on another ground in People v. Carbajal (1995) 10 Cal.4th 1114, 1126; People v. Escobar (1991) 235 Cal.App.3d 1504, 1511.) It has been held, however, that a criminal court may order a defendant to pay a civil judgment against him arising out of crime of which he was convicted. (People v. Keele (1986) 178 Cal.App.3d 701, 708-709; People v. Walmsley (1985) 168 Cal.App.3d 636, 640.) Inasmuch as the trial court did not impose civil liability on defendant but merely ordered that he pay any future civil judgment against him arising out of the accident, the trial court’s order was proper.

Denial of Probation

A grant of “‘[p]robation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.’” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831; People v. Kronemyer (1987) 189 Cal.App.3d 314, 364-365.) The trial court abuses its discretion when its decision is arbitrary or capricious, or it exceeds the bounds of reason under the circumstances. (Du, supra, at p. 831; Kronemyer, supra, at p. 365.)

In denying probation to defendant, the trial court considered in mitigation letters submitted on defendant’s behalf by his children, defendant’s lack of a criminal record and documents portraying him as a good man. In aggravation, the trial court found facts relating to the crime supported the imposition of punishment: the speed at which defendant was driving, the results of the impact versus defendant’s claim that he did not realize he had hit something, his failure to return to the scene of the accident once he got to work and realized he had been involved in an accident, and his immediate decision to take the van in for repairs in order to hide his involvement in the accident. The court concluded the factors in aggravation outweighed those in mitigation and defendant therefore was not suitable for probation.

Defendant argues the trial court abused its discretion, in that there was no evidence he was driving above the speed limit, it did not believe he would not notice the damage to his van, it did not appear to believe he felt remorse for Dich’s family, and it gave only cursory acknowledgement to mitigating factors. Additionally, the record did not show defendant was likely to pose a danger to others if he were placed on probation.

The record shows that the trial court did consider mitigating factors in making its decision. Even if defendant was not driving above the speed limit, the evidence supports an inference he was driving too fast for the conditions at the time. The trial court made no specific statement as to defendant’s remorse but focused instead on his actions at the time. The trial court did not discuss whether defendant was likely to pose a danger to others if placed on probation, but that is just one factor to be considered in deciding whether or not to grant probation. (Cal. Rules of Court, rule 4.414.)

The record here demonstrates that the trial court considered both aggravating and mitigating factors in deciding to deny probation to defendant. Its goal was to follow the law in sentencing defendant. Its decision thus was not arbitrary or capricious, and it did not exceed the bounds of reason under the circumstances. We thus find no abuse of discretion in the decision. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

The judgment is affirmed.

NOT TO BE PUBLISHED

SPENCER, P.J.

I concur:

MALLANO, J.

I concur in the judgment only:

VOGEL, J.

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